Warning about licensed characters and copyrighted material

DON'T DO IT!I know it's not new information to many, but there has been an interesting discussion on Kerry Vincent's Facebook page on this topic. Included in the discussion are some comments from someone from Food Network who was involved in obtaining legal permission for using licensed characters on the shows. It seems that companies who own copyrighted material are on the war-path and have hired people specifically to search websites for infringments. Kerry Vincent is trying to warn people, even small companies, to remove any pictures that could be considered as copyrighted material from their websites. She is also telling people not to make licensed character cakes for sale, it is not worth the hundreds of thousands of dollars it will cost if a person gets sued. This includes giving credit to the designers of cakes we copy, even ones in how-to books. It also includes colleges, sports teams, designs copied from invitations etc. In some cases it doesn't cost much to get written permission, but Disney- forget it! It is a matter of ethics as well as legality- and Ms. Vincent says it will help make us better designers in the end. This is all paraphrased but I will ask if I can post some quotes from this conversation here. TFL!

THank you for that info. I already abide by this rule pretty much, and I know Disney is a big NO NO. I even had a friend once who got taken to court by Disney. She changed the color of Mickey Mouse's pants from red to yellow on the cake and thought that would make a difference. Honestly, the judge threw out the case in her favor just because she did that, basically telling Disney they didn't have a case. She was sooooooooo lucky, she has no idea. I still don't understand why bakers take the risk. I maybe have to turn down a "copyright" image order every once in a while, and usually, I can get the customer to find a way to work around it by making them a "theme" cake for them to add the toy to later. Thanks for the heads up. I headed over to Facebook, and put in a friend request.

Haha, I just remembered I have some Toy Story cookies posted that I need to take down! I made them for a family member and didn't charge for them- but still... I didn't enjoy doing them- I prefer to do my own designs. I am not even that good at replicating things anyway. ~Rachel

Mindy you are so right that person was lucky! I've shared this story before, but my neighbor works for Jim Davis, creator of Garfield. Some guy thought if he drew Garfield in blue, that would be ok. Mr. Davis is very protective of his work and took the guy to court, where a judge ruled that even with a different color, it's STILL Garfield!

ya know, I forgot to say, that I'm glad sometimes that we can't do them character cakes that Wilton puts out. They are a lot of work, and people never realize how long it takes to do them. And they never want to pay you for your time, covering them and piping those silly stars.......lol

I saw that whole conversation on Kerry's facebook page yesterday...and I think its still going on today. There is a local person from my area that chimed in on her facebook page about it but I know that he does designer purse cakes. I don't know how he gets around this. And he's been on the local news and also one of the cake challenges on the Food Network so he's not a low profile person. I wonder if he's getting permission somehow?

. Kerry Vincent is trying to warn people, even small companies, to remove any pictures that could be considered as copyrighted material from their websites. She is also telling people not to make licensed character cakes for sale, it is not worth the hundreds of thousands of dollars it will cost if a person gets sued.!

While this is good advice, the advice should be do not them at all (exception is if you are using a Wilton marked for home use and making a cake for your home use). Infringement is based on the reproduction of the work. If you make it and give it away you are still infringing on the copyright. Profit only matters in terms of the amount of damages a copyright holder can seek.

Even without a profit, a copyright holder can pursue damages based on the production of the copyrighted figure. While it would take a pretty vindictive copyright holder to go after someone who made a character cake for a friend for free, they could still come after you and you would be in violation of copyright law. Thus even the hobby baker must comply with copyright law even if they are just doing them for family and friends.

Does this also go for someone like me that does cakes for donations to my charity? I don't make a cent on those cakes, it all goes to the Leukemia & Lymphoma Society. I've got a spongebob cake scheduled, will it be OK if I just don't post the pics?

This is true, cakeprof. The company can argue that if you had not given away the cake to this person, they might have purchased it from the company. So they are losing sales because you are providing their character for free.

Does this also go for someone like me that does cakes for donations to my charity? I don't make a cent on those cakes, it all goes to the Leukemia & Lymphoma Society. I've got a spongebob cake scheduled, will it be OK if I just don't post the pics?

Yes to the first question and No.

Just to reiterate infringement is not based on profit it is predicated on the unlicensed reproduction of a copyrighted work. I deal with copyright multiple times a year in which I reproduce things to be distributed under the fair use exception. The reproductions are not for profit and yet I must make sure everything included is consistent with the fair use exception, the question of profit is irrelevant. If I include something that violates the fair use exception and reproduce it, I am liable.

As to the second question making it and not posting pics does not make it OK. Sure if you do not post the picture you make it harder for a copyright holder to come after you. Making the cake is the infringement, the picture is just the evidence the holder can use to prove you infringed on their copyright. Given the cause you are donating it for, it is likely going to generate bad publicity for a copyright holder if they come after you for doing the cake. Per the terms of copyright if you reproduce the character you have infringed on the copyright. Thus is it okay? No. Do you have much to worry about? I do not think this should stop you from doing the cake. Just be aware that technically you are at risk.

. Kerry Vincent is trying to warn people, even small companies, to remove any pictures that could be considered as copyrighted material from their websites. She is also telling people not to make licensed character cakes for sale, it is not worth the hundreds of thousands of dollars it will cost if a person gets sued.!

While this is good advice, the advice should be do not them at all (exception is if you are using a Wilton marked for home use and making a cake for your home use). Infringement is based on the reproduction of the work. If you make it and give it away you are still infringing on the copyright. Profit only matters in terms of the amount of damages a copyright holder can seek.

Even without a profit, a copyright holder can pursue damages based on the production of the copyrighted figure. While it would take a pretty vindictive copyright holder to go after someone who made a character cake for a friend for free, they could still come after you and you would be in violation of copyright law. Thus even the hobby baker must comply with copyright law even if they are just doing them for family and friends.

I should be careful not to represent her message incorrectly. She is saying don't do them! Her advice to some peolpe who had been doing them was to stop and take pictures down. Or rather, they said they were going to do so and she was in favor of it. I am just paraphrasing- and I hope iI got it right here!

I tell my customers that I can't make them. I suggest we make a cake with the colors and design to go with the characters and have them purchase toys for the characters. Someone asked me about it the other day and I was glad when they told them that other people told them the same thing - won't do it.

The logo for sure is protected as well as specific trademark. However the purse should be fine without any of the trademarks. Think about designer knockoffs. They are legal often copying form, fabric type and basic design.

So long as they do not included the trademarks the knockoffs are legal. Clothing designs cannot be copyrighted---which is why the can be imitated. So long as they do not include trademarks--the knock off cake should be fine.

The logo for sure is protected as well as specific trademark. However the purse should be fine without any of the trademarks. Think about designer knockoffs. They are legal often copying form, fabric type and basic design.

So long as they do not included the trademarks the knockoffs are legal. Clothing designs cannot be copyrighted---which is why the can be imitated. So long as they do not include trademarks--the knock off cake should be fine.

sorry, please translate...so they can incude the "C" for Coach, for ex., but can not have the TM symbol? maybe I'm missing what the def. of a trademark is...

just curious- i can purchase any disney/sports team etc cake toppers from my local grocery store. when i use them on my cake does that make the cake illegal?i dont sell my cakes but from what im reading it doesnt matter if you are selling your cakes or not?and what about purchasing cake decorations on line? how does that play into all of this?

The logo for sure is protected as well as specific trademark. However the purse should be fine without any of the trademarks. Think about designer knockoffs. They are legal often copying form, fabric type and basic design.

So long as they do not included the trademarks the knockoffs are legal. Clothing designs cannot be copyrighted---which is why the can be imitated. So long as they do not include trademarks--the knock off cake should be fine.

sorry, please translate...so they can incude the "C" for Coach, for ex., but can not have the TM symbol? maybe I'm missing what the def. of a trademark is...

A trademark includes any word, name, symbol, or device, or any combination, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods.

Not familiar with coach bags so not sure about the Coach "C." If the "C" is used by Coach to identify and distinguish its goods, then it could not be included on a cake--legally. Legal knock offs look like the original however they do not bear the "marks" of the original.

just curious- i can purchase any disney/sports team etc cake toppers from my local grocery store. when i use them on my cake does that make the cake illegal?i dont sell my cakes but from what im reading it doesnt matter if you are selling your cakes or not?and what about purchasing cake decorations on line? how does that play into all of this?

The logo for sure is protected as well as specific trademark. However the purse should be fine without any of the trademarks. Think about designer knockoffs. They are legal often copying form, fabric type and basic design.

So long as they do not included the trademarks the knockoffs are legal. Clothing designs cannot be copyrighted---which is why the can be imitated. So long as they do not include trademarks--the knock off cake should be fine.

sorry, please translate...so they can incude the "C" for Coach, for ex., but can not have the TM symbol? maybe I'm missing what the def. of a trademark is...

A trademark includes any word, name, symbol, or device, or any combination, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods.

Not familiar with coach bags so not sure about the Coach "C." If the "C" is used by Coach to identify and distinguish its goods, then it could not be included on a cake--legally. Legal knock offs look like the original however they do not bear the "marks" of the original.

The Coach "C" has certain placement on the purse to make it a Coach purse. The knock off purses usually use the "C" but in a different placement. I'm pretty sure the knock off purses with the C on them regardless of how the C is placed on the purse is illegal...so I would assume the same is true for a purse cake.

LOL!!!! UGH! I just did a Toy Story cake with GINORMOUS character faces on it (no pretending it wasn't the characters on that one!) for my youngest son's 3rd birthday ... Let me shout to the four winds that it was FOR MY SON! And I've got the pictures of my sugared-up progeny to prove it .

Good grief. So now it's risky to post a photo of the licensed character cake I made for my child's birthday?

you would need to clearly label that you did it for your OWN kid for your OWN PRIVATE party

they're after anything that hints at $$$ being involved in the least way.

BEST would be do a background cake, purchase toys and stick them on.

I don't do any cakes for money. If the assumption could be that licensed cakes, even just done for one's child, could be a copyright issue, then my mother in law is in huge trouble for all the Halloween costumes she has done for my kids so I didn't have to buy those stiff costumes with jagged-edge masks that fall apart after an hour.

Good grief. So now it's risky to post a photo of the licensed character cake I made for my child's birthday?

Well its not particularly new--the difference it the net has made it easier for those paid to locate copyright infringements to find them as the people posting the images are providing the evidence of the infringement.

While a technical violation, it is unlikely to result in legal action. There is little to be gained by going after someone doing it for their child, as there is little commercial value in this instance.

What about cakes using the Tiffany blue or cakes made to look like a Tiffany jewelry box? Just curious. I'm sure there can't be a "copyright" on a color but the tiffany blue identifies with Tiffany jewelry.

The Disney issue really bothers me. As a writer, I deal with copyrights all the time. So many Disney "stories" are based on stories written by other authors, but rewritten and then given a new face, doll, playset, theme park, and more. I better quit there before the Disney mafia shows up at my door.

The Disney issue really bothers me. As a writer, I deal with copyrights all the time. So many Disney "stories" are based on stories written by other authors, but rewritten and then given a new face, doll, playset, theme park, and more. I better quit there before the Disney mafia shows up at my door.

yes, stories that are in the public domain and free for all to tell and retell, which is why anyone can write their version of Cinderella, Sleep Beauty, etc.

BUT the specific IMAGERY that Disney created in their retelling IS NOT in the public domain, IS copyrighted and therefore off limits.

Consider Winnie the Pooh. Disney bought the rights to the story, but could not get the rights to the original images and had to create a whole new visual interpretation. Even they can get hemmed in by copyright.

I'm sorry, but I think someone larger than us needs to review the whole "trademarking" policies! Does anyone know if these trademarks go for all countries? I live in Canada, and I have been reading everyone's comments. I'm sorry but these large companies are getting extremely petty! Do they seriously not make enough money with everything they do that they can waste money having people search for a mom who's 3 year old begged her for a lightening mcqueen cake, so she had a sister make it for her? Maybe some of these corporate "people" (and I use that term lightly) should explain that to the marketing group that the create the stuff for - you know, the children!!!

Do we not have enough more important things going on in this world for them to be so focused on this??? How do they sleep at night?

(sorry, had to get that off my chest, and I am a shift worker who didn't sleep much today!! apologies if this affended anyone)

Do they seriously not make enough money with everything they do that they can waste money having people search for a mom who's 3 year old begged her for a lightening mcqueen cake, so she had a sister make it for her?

It has nothing to do with the money. It has everything to do with preserving the integrity of the creator's work. As I understand it, and I'm' open to correction if this is not right, copyright owners must make all efforts to pursue ALL violations or they lose the right to pursue ANY violations.

I always find it interesting that when it comes to a caker on here using a copyrighted figure on a cake, there are many views that it should be ok; it's no big deal; and how it's not really hurting anyone. But Katie Bar The Door if a caker's photo is used on another site, or if someone's design is used and no credit is given.

One only needs to read the multiple threads on the success of our own Cake Boss's success on the use of the trademarked name being used by a cable channel for one of their shows to see what I mean.